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Your I-485 Was Denied – What Are Your Next Steps?

Your I-485 Was Denied – What Are Your Next Steps?

Getting any application denied by USCIS can be heartbreaking. It can be particularly tough with the extensive process associated with a Form I-485, Application to Register Permanent Residence or Adjust Status. You likely spent a lot of time and money getting all of your documents ready to file and preparing for your interview. Fortunately, a denial does not mean that all hope is lost. One option is to file a Motion to Reconsider or a Motion to Reopen with USCIS. Alternatively, you can request a review from USCIS’s Administrative Appeals Office (AAO). Another option is to reapply and start the process over from the beginning. A final option, and perhaps one you would prefer to avoid, is to see if you receive a Notice to Appear in Immigration Court for removal proceedings. If this happens and USCIS did not revoke or deny your Form I-130, Petition for Alien Relative, then you can ask the judge to reconsider your I-485 as a defense to removal.

Motion To Reconsider / Motion to Reopen

A Motion to Reconsider and Motion to Reopen are two similar but distinct motions that can each be filed with USCIS. A Motion to Reconsider can be filed when you and your attorney believe that you have a valid legal argument that the USCIS officer made a legal or factual error in denying your application. If you can successfully convince USCIS that they were legally in the wrong, then the denial can be reversed, and you can be issued a green card.

A Motion to Reopen, on the other hand, can be filed when there is new evidence that was previously unavailable and may change the outcome of the case if the case were reopened to consider the new evidence. Note that this cannot just be new evidence that you forgot to submit earlier. You will have to explain why you were not able to submit that evidence originally, which usually means that some circumstance must have changed that justifies allowing you to submit this additional evidence.

Appeal to AAO

Appealing to the Administrative Appeals Office means taking your case out of the hands of the officer who handled your case and asking a different, though related office to reconsider your application. Keep in mind, that this only makes sense if you believe that an error was made in your case because you will not be allowed to introduce new evidence through this appeal. Additionally, the AAO has historically upheld the decisions made by USCIS officers.

If you and your attorney nevertheless decide that this the best route for you to take, you would initiate by filing a Form I-290B, Notice of Appeal or Motion with USCIS within 30 days of notification of the denial (you get 33 days if you received the notification by mail). The specific place you will mail the form to depends on your specific situation, so make sure you look up the proper address for your case. Along with your application, you will need to pay $675 filing fee in order for them to consider your appeal.

This process essentially just has a new officer at this different office to look at the exact same information that has already been filed and reviewed. As a result, it is a rare situation where the new officer will overturn the denial. Due to the added cost, the lost time, and the unlikelihood to succeed, many lawyers prefer to bypass this option and instead choose to re-file the case, which allows them to build up your case from the beginning to give you the best chance at success.

Re-File

If you have some form of legal status that will allow you to stay in the country despite the denial, you may have the time to start the process all over to build a stronger case from mostly the beginning. If your I-130 or I-129F were not denied or revoked by USCIS, you can skip that initial step and merely file a new I-485 with applicable evidence and fees.

This may be a particularly beneficial avenue if the denial was based on something where you have not been able to develop enough evidence to warrant receiving a green card. For example, if you are attempting to adjust status through marriage, it is possible that you were denied because USCIS doubted that the marriage was real. Perhaps you and your spouse had an unusual situation that did not allow you to develop a life together as a married couple quite to the satisfaction of the USCIS officer. If you re-file, you can take the time with your spouse to build your life together in order to have enough evidence to convince the USCIS officer of your relationship.

Ask An Immigration Judge to Reconsider Your I-485

This method is something you probably want to avoid if at all possible because it involves putting yourself in danger of deportation for a chance at having the I-485 application reconsidered. If you do not have any other status allowing you to stay in the United States, you will likely receive a Notice to Appear, which is a summons to appear before an Immigration Judge for removal proceedings. You will first have what is called a Master Calendar Hearing. At this hearing, you must tell the judge that you want adjust your status as a defense from removal.

The judge will then set a deadline for you to submit your documents along with a date for your merits hearing, which is when you will be able to present your case to the judge. You will want to present all of the same documents you gave USCIS for your I-485, along with any additional evidence that you think will help your case. On the day of the hearing, you will be able to present witnesses to testify for you (they can speak to things such as whether your marriage is bona fide, for instance). Note, however, that an attorney for the U.S. government will be able to ask you and your witnesses questions, as well.

When all evidence has been presented, the judge will make his decision and, if all goes well, may decide to approve your application and allow you to get a green card.

What Should You Do?

Which option you end up taking is ultimately up to you. We can only recommend that you get an experienced immigration attorney to help you every step of the way. An experienced immigration attorney will best be able to pinpoint where the initial application failed and what it would take to succeed moving forward.

To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

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